Trending Music: A Hidden Copyright Risk in Influencer Marketing

Brands increasingly rely on social media influencers to promote their products and services, leveraging influencers’ savvy use of social media platforms to drive brand awareness and sales. One way influencers maximize visibility is by incorporating “trending” sounds and music into their content. While this strategy is often highly effective, recent litigation demonstrates that it may also inadvertently increase litigation exposure for both the influencer and the brand itself.

Background: The Hidden Risks

Many influencers assume that songs in a social media platform’s music library are free to use in any type of post on that platform. However, the platforms, which generally license those songs from music rights owners, offer different types of music licenses to users: while some songs are available for commercial use, many are limited to personal use only. And, although the platforms offer some safeguards to prevent personal-use-only songs from being used for commercial purposes, the distinction between the two is not always apparent.  

As a result, a seemingly routine decision, such as an influencer selecting a trending song from a platform’s music library for a post in collaboration with a brand, can create unexpected copyright risks for both the influencer and the sponsoring brand, if the necessary rights have not been separately secured for that use. Additionally, if a brand did not properly set up its own social media account as a business account (which can easily happen if the account was created without attention to these settings), it may have access to personal-use-only music without realizing it.

Recent Lawsuits Highlight Brands’ Risk Arising From Influencer Music Choices

Last year, major music companies, including Sony Music Entertainment (“Sony”) and Warner Music Group record labels and publishers led by Atlantic Recording Corporation (“WMG”), each sued Designer Brands, Inc. and related companies (“DSW”) for copyright infringement based on the music used in social media posts by DSW and its influencers, music that DSW contends was added to the posts using the platforms’ music libraries. DSW also filed its own lawsuit against several music companies, including Sony and Universal Music Group (“UMG”).

Specifically, each music company asserted three claims against DSW:

• Direct copyright infringement, based on DSW’s alleged unauthorized use in its social media marketing, including posting, reproduction, or distribution of copyrighted music.
• Contributory copyright infringement, based on allegations that DSW helped or induced influencers to infringe their copyrights.
• Vicarious copyright infringement, based on allegations that DSW had the right and ability to control the influencers’ infringing activity and financially benefited from it.

In support of their claims, the music companies pointed to platform terms of use restricting certain songs to personal use only, as well as TikTok requirements for a person posting to confirm that they have all rights to the relevant songs. The music companies further noted that DSW is a sophisticated company that should reasonably understand music licensing.

In response, DSW made several arguments, including:

1. It used music made available through the platforms in accordance with their tools and policies, including terms allowing users to distribute content from other users.
2. The music companies are attempting to impose liability for conduct they previously encouraged, citing their press releases announcing the songs’ availability on the platforms, without any apparent personal-use restriction.
3. The music companies were compensated through royalties paid by the platforms and the promotional value generated by the posts.

If the music companies ultimately succeed and the courts find the infringement to be willful, DSW could face statutory damages of up to $150,000 per infringed work under 17 U.S.C. § 504(c). Because WMG’s complaint alone alleges infringement of over 200 copyrighted works, DSW’s potential statutory damages could exceed $30 million just in that case.

DSW-Sony Settlement Followed by New, Similar Lawsuit Against Kroger

While the outcome of the WMG case remains to be seen, DSW appears to have reached a settlement in principle with Sony and UMG in August 2026. Immediately following that settlement, Sony filed a new lawsuit against The Kroger Co. alleging substantially the same claims, which may suggest that Sony viewed its settlement with DSW as favorable.

How Brands Can Reduce This Type of Copyright Exposure

These lawsuits underscore the significant copyright risks that can arise from a common practice in influencer marketing and serve as a reminder that such campaigns should be approached thoughtfully, with appropriate brand-side safeguards in place.

While it may be difficult to control every aspect of brand-created content and influencer posts, brands should:

• Train their influencers, as well as their internal and external marketing teams, to recognize these potential copyright risks.
• Monitor influencer content across the marketplace for potential issues.
• Understand how social media platforms’ less-than-intuitive music libraries work to confirm which songs may be available for commercial use.
• Weigh the pros and cons of having approval rights over influencer content. Although approval rights give brands greater control, that control may also strengthen an argument for contributory or vicarious liability if the brand approves content that ultimately infringes a third party’s copyright.
• Enter into clear agreements with influencers that:
  • Prohibit the inclusion of music unless the influencer or the brand has obtained the appropriate rights for both parties to use it.
  • Clearly document the content approval process, including approval of any music choices.
  • Grant the brand the right to require changes to or removal of content after posting, in case something is overlooked.
  • Include appropriate risk-shifting provisions, potentially including insurance requirements.

Taking these preventative measures can help brands identify potential issues before content is published and reduce the likelihood of becoming the next target of a copyright infringement lawsuit.

We are continuing to monitor the cases described above and others, including a case by UMG against Quince, making substantially the same claims.

As a content creator herself, and a marketing law professional, firm attorney Kasey Boucher Pierter understands the intricacies of social media platforms and their corresponding legal challenges. If you have any questions about this alert, or if you are looking for some practical advice to mitigate risks when working with influencers, please contact Kasey at kboucher@pierceatwood.com.